A Day in the B.C. Supreme Court (Sept. 2, 2009).
A System in Decay. Two trials in one court. The BC Rail Scandal.
The BC Rail Scandal court action began, ostensibly, with search warrant “raids” on B.C. legislature offices, December 28, 2003.
A full year of further investigation ended with 14 charges against two highly placed Gordon Campbell cabinet aides and one information officer. The charges were, variously, for fraud, breach of trust, and money laundering. They were laid in December of 2004.
A statement was made very soon after the raids that no elected official was being (or, apparently would be) investigated.
The men are alleged - being under oath of confidentiality - to have traded information for benefit in relation to a part of the “negotiations” that were going on in what is now generally agreed to have been the corrupt sale of BC Rail by the Gordon Campbell forces to CN Rail.
(By now a full-scale, wide-open Public Inquiry should have been launched into the allegedly astonishingly tainted goings-on and to their relation to other, on-going alleged breaches of trust by the Gordon Campbell government. But since government controls such an undertaken, an Inquiry has not occurred.)
As a number of people have (wishfully?) remarked: “the essence of the case is whether a few highly-placed cabinet aides, possessing confidential information, traded that information for benefit. Did they or did they not? Why can’t the trial begin?”
They go on to say: “What is the Defence doing? Are they placing application after application after application for disclosure of materials that ‘may be relevant’ to the defence of their clients simply to delay and to exhaust the court which will be forced, eventually, to enter a ‘stay of proceedings’ and end the whole thing (in mid-air) because of mistrial?”
That question cannot be answered resoundingly, of course. But the more than three years of pre-trial hearings have resulted in applications for disclosure – and resulting disclosure which has – more and more – led observers to believe that whatever wrong-doing the three accused may have been engaged in, the story of BC Rail Scandal corruption is gigantically larger than the three men charged.
Many observers have been led to believe the gigantic difference is shaped by what seems to have been a concerted, carefully constructed set of inter-agency manipulations to mislead the British Columbia people and to create unreal (and, perhaps, essentially fraudulent) arguments for the off-loading of BC Rail.
Evidence has grown, in addition, to reinforce the argument that the Gordon Campbell government intended - before any “open competition” for the purchase of BC Rail began - to hand it to CN Rail whatever other bids came in.
The result for people who have closely observed the pre-trial hearings has been strange. They have lived in a world, in fact, where TWO TRIALS have been underway (though, formally, only pre-trial hearings are underway in relation to the charges against the three men).
One “trial” is of Basi, Virk, and Basi, the cabinet aide-appointees charged.
The second “trial” is the increasingly intense trial of the Gordon Campbell government as more and more information piles up to suggest the three men accused were very small potatoes indeed in relation to the gigantic magnitude of the alleged breach of trust planned and executed by major actors, in highest positions of trust, in the Gordon Campbell group.
The Defence, in fact, from the beginning has alleged that the three men ARE small potatoes in the matter and were the “fall guys” for people who gave them “orders” – whether in fact or as a character of their employment – to do wrong. Defence calls for disclosure of a wide range of activities in relation to the (corrupt) “sale” of BC Rail because every indication that the “sale” was the result of planning and execution by people in high places is a further indication (Defence would allege I believe) that the actions of the accused in the matter were part of the texture woven by their superiors.
The extraordinary thing about the process is that the legally instituted “trial” becomes less and less significant as the enormity of the “shadow trial” of the Gordon Campbell forces becomes more and more evident.
That situation affects the courtroom atmosphere in strange ways.
The judge focuses on the legally instituted trial, pretending the other one is not happening.
The Crown prosecution acts as if the applications for disclosure of - say – cabinet and MLA e-mails as well as the documents in the possession of Patrick Kinsella who was connected in many (clear and unclear) ways with the sale of BC Rail are almost vexatious, almost without basis and/or serious relevance.
Observers in the courtroom are more and more (almost unconsciously) focussed upon the information revealed – little by little – to support allegations that the apparent competitive bidding for BC Rail was a huge, manufactured sham.
Because she has refused to face the enormity of the implications of the pre-trial hearings (or, perhaps, because she finally has) Madam Justice Elizabeth Bennett is moving out, leaving in mid-proceeding, handing over the trial to another judge. I have already written that I think her doing so is irresponsible.
I have, moreover, repeatedly upbraided Justice Bennett for failing to assure that the openness of the “open” pre-trial hearings is as full as she can make it. Try the following for a bizarre story. This “open” court should have, I insist, provided printed transcripts of each day of “open” hearing before public observers. It has not done so.
At Wednesday’s hearing, Defence asked Madam Justice Elizabeth Bennett to require counsel for Patrick Kinsella to tell whether he has revealed the contents of transcripts received to anyone (with particular reference to Kinsella, whom Defence has made clear it will be calling as a witness when the trial takes place).
What transcripts, I asked outside of court? The printed transcripts Kinsella’s counsel ordered (without telling Defence) and apparently received of some days of the hearing, I was told.
Witnesses who will be called to testify at trial are not supposed to be able to attend hearings or to review transcripts of proceedings.
Did Kinsella read the transcripts his counsel sought and received?
That is information Defence formally seeks in court.
Two laws obviously operate in the B.C. Supreme Court on the matter of transcripts – one for the chosen few, the other for ordinary British Columbians. Some time ago I sought to know exactly what had happened on one of the days of hearing I missed, and I asked Madam Justice Elizabeth Bennett for a copy of that day’s proceeding.
I was sent to Criminal Registry. I repeated my request (maybe showing a note from staff, I forget). I waited while I was told the storing place in Victoria was contacted. From there, electronically, the day’s proceedings were sent to the Vancouver Court House. Then the technician burned a disc. I was placed in a private place and allowed to listen and take notes – but I could not have a printed transcript. When I was through, the technician took the disc back to destroy the material on it. He was kind and attentive – an employee doing what he was told to do.
He didn’t know he was participating in a discriminatory process in no way envisaged by the founders – over centuries – who shaped our precious idea of “open courts”. In such places the trial processes of alleged criminals are open to the public so that justice may be done and nothing may be undertaken in secret in such a way as to defraud the public or unfairly harm the accused.
I didn’t know at the time that if I was lawyer for Patrick Kinsella, I could order and receive printed transcripts of days of hearing probably without having to go near the courthouse. “A law for the rich and a law for the poor”, to which – I maintain – Madam Justice Elizabeth Bennett has given her consent throughout the BC Rail Scandal court proceedings.
The irony of this “clubhouse” arrangement is that I am much, much less likely to hand printed transcripts to a named witness than a lawyer for a named witness is. But club members get special privileges denied to the people for whom the courts have been established.
Because two trials are in fact going on in the pre-trial hearings leading to the trial of the three men accused in the BC Rail Scandal, every strange occurrence, every anomaly is open to suspicion. Has Madam Justice Elizabeth Bennett kept information on the public record from the public to protect powerful people? When cabinet counsel George Copley reported years of e-mail records have been erased – when the pre-trial hearings pointed to the need to preserve those records – was the erasure an intentional act to defeat the fair pursuit of justice? Why did Madam Justice Elizabeth Bennett refuse Defence counsel the right – almost immediately – to cross examine all those involved in the erasure of records, including Gordon Campbell? Why did she not ask the RCMP to undertake a criminal investigation?
Those are very, very serious questions. They exist in the astounding situation in which three men are charged with crimes in a context where more and more evidence points to possible greater crimes by people of significantly greater power – who have not even been formally investigated let alone charged with wrong-doing.
The Alice In Wonderland situation of (in fact) two trials going on in one courtroom boggles the mind. But the situation leaves little doubt that – whatever else - we are watching a system in very serious decay.
Stumble It!